IN THE HIGH COURT OF LESOTHO In the Matter of :
V BOY PETER MASEKO
Delivered by the Hon. Mr. Justice B.K. Molai on the 29th
day of October, 1984.
The accused is charged with the murder of one Lebohang
Oscar Leluma in that on or about 8th February, 1984 and at or near
area - Maseru Reserve -in the district of Maseru he
unlawfully and intentionally killed the deceased.
Five (5) witnesses were called to testify in support of
the Crown case. The defence called two witnesses and the accused
gave evidence on oath.
The evidence of PW.1, Moeketsi Tsatsanyane, was not
rosily challenged by the defence. I have, therefore, no good reason
it. It was to the effect that he was the proprietor of a
certain Ma-Africa Motor Garage in Meseru. On 7th February, 1984, he
away in Bloemfontein in the Republic of South Africa from where
he returned on the same day. On the evening of the same day, the
deceased called at his house and reported that he had left his
(deceased's) mazda van, which he wished to sell at the garage. It
was agreed that the deceased and PW.1 would meet at the garage on the
following morning 8th February, 1984, apparently to discuss
details of the sale.
At about 10.00 a.m. on the morning of 8th February,
1984, the deceased duly came to PW.1 at the garage. The deceased was
the company of another person whom he said was prepared to
buy the van for ready cash. As he was not going to buy the van for
cash (he was presumably going to pay the deceased after the van
had been sold by the garage) PW.1 had no objection to the
2/ deceased selling ....
deceased selling the van to the new prospective buyer.
The deceased then obtained the ignition key from PW.1 and together
prospective buyer proceeded to the van. They started the
engine of the van after which they returned to PW.1 and handed back
ignition key. Before leaving with his companion, the deceased
authorised PW.1 to do some repair work on the van.
At about 12 noon on the same day, the deceased returned
to PW.1 at the garage. He was still in the company of the
and a third person whom he said was the elder
brother of the prospective buyer, According to PW.1, the deceased
told him that the
elder brother of the prospective buyer also wanted
to satisfy himself as to the condition of the van. So, the deceased
ignition key from PW.1 and proceeded to the van together
with the prospective buyer and his elder brother. PW.1 who had been
to the deceased and his party outside the entrance of his
office at the garage returned into the office.
A minute or two after he had returned into the office,
PW.1 heard an explosion outside. He at first thought it was the
of a vehicle passing on the road. However, when the
explosive sounds repeated in quick succession, PW.1 had a mind that
gun reports and he immediately went out of the office to
see what was happening.
It is perhaps necessary to mention at this juncture that
according to the evidence, the garage building is situated opposite
High School in Maseru. Immediately on the southern side
of the building there is a caltex petrol service station. There is
the main tarred road leading from T.Y. to the main traffic
circle in Maseru. Beyond the tarred road is the Lesotho High School.
On the northern side of the garage building, there is a gravel road
running from east to west towards the main bus stop in Maseru,
Across that gravel road is the Metro wholesale. On the north-western
side of the
3 / garage building
garage building is a yard used partly as a parking area
for vehicles that have come for repairs at the garage and partly as a
yard. The yard is, therefore, virtually littered with a number
of vehicles. On the western side of the garage yard,there is another
short gravel road that links the main tarred road with the gravel
road passing on the northern side of the garage building. Next
the short gravel road that connects the tarred road with the road
passing on the northern side of the building but still within
garage yard, there is a peach tree. The entrance to PW.1's office is
on the north-western side of the garage building so that
the garage yard as one comes out of the office. Immediately outside
PW.1's office entrance, there was an E.20 combi which
had been parked
there for some days.
Now, PW.1 told the court that when he came out of the
office and was next to the E.20 combi parked outside his office
saw a man approaching in his direction about 10 paces
(indicated) away. As soon as he noticed him, that man raised his hand
a gun at him. It was a hand gun or pistol with a darkish
barrel. The moment he saw the barrel of the gun being pointed at
PW.1 got a fright and immediately took cover behind the E.20
combi. He had no time to scrutinize the gunman so that he was unable
to identify him. As the gunman went to one side, PW.1 moved to the
other side of the E.20 combi. PW.1 eventually managed to scape
ran away. He ran to the southern side of the garage building and did
not know what the gunman remained doing on the north-western
However, soon after he had come to the southern side PW.1 noticed the
gunman appearing from the eastern side of the building.
immediately took to his heels and hid among the vehicles in the
garage yard from where he could see the gunman leaving the premises
and going in the direction towards the main tarred road. I shall
return to PW.1's evidence later in this judgment.
The evidence of PW.1 was, to some extent, corroborated
by that of DW.3, Thabo Matlole, who testified that on the
4/ day of the
day of the shooting he was employed at PW.1's garage.
Just before the shooting he had parked the truck which he was using
work and wanted to do some minor repairs on it. He took a
spanner from a tool box at the garage and was removing a balt from
of the old vehicles in the yard when he heard footsteps of a
person passing behind him. He turned round and noticed a man who was
not one of the workers at the garage. That man came from the
direction of the tarred road and was going among the many vehicles
that were parked in the yard. At that time he also noticed, next to
a mazda van, three men (obviously the deceased and his two
The man who came from the direction of the tarred road
went behind the three men. DW.3 then heard explosions "Qhoa!
There were altogether 4 explosions which came in rapid
As he heard those explosions DW.3 looked around and
noticed that the man who had just passed behind him was holding
something he could
not clearly identify. The man was, however, facing
towards the three men next to the mazda van. The explosive sounds
from that man.
As the man was making the explosive sounds, the other
three men ran away in the direction towards the bus rank but as they
one of them fell to the ground. After one of the three
men had fallen down and the other two run away, the explosive man who
been following them returned.
DW.3 then ran away and was joined by PW.1 who had just
come out of his office. They ran to the southern side of the garage
According to. DW.3, when he ran to the southern side of
the building with PW.1, the latter was just coming out of his office
explosive man never pointed a gun at him. The question that
immediately arises is why then did PW.1 ran away. It seems to me
must be making a mistake here and a reasonable explanation which
I accept is the one given by PW.1 namely that he ran away because
saw that person
5/pointing a gun ....
-5-pointing a gun at him.
Be that as it may, the evidence of DW.3 confirmed that
of PW.1 in that soon after they had run to the southern side, the
man emerged from the eastern side of the building and they
had to run back to the north-western side from where DW.3 also saw
man leaving the premises and heading towards the main tarred
DW.2, Lesupi Metsing, another employee at PW.1's garage,
testified that on 8th February, 1984 he was cleaning an engine next
office entrance when he noticed three men arriving in a redish
vehicle. After they had come to the garage,the three men went to a
mazda van in the middle of the yard, a distance of about 12 paces
(indicated) from where he was working. As they stood next to the
they were talking although he could not follow their conversation for
he was busy working, DW.2 then suddenly heard gun reports.
shots could have been fired but as he was frightened DW.2 was not
positive. The gun reports came from the direction of the
and towards the peach tree. . The three men who were standing next to
the mazda van then ran away in the direction towards
the bus stop.
Although in his evidence he said the gun shots were from
the direction of the mazda van and towards the peach tree, DW.2 said
not actually see anyone firing the shots. If he did not see
the person who was actually firing in the garage, I fail to
how DW.2 could have been so certain that the shots were
fired from the direction of the mazda van towards the peach tree.
In any event, DW.2 went on to say as the three men were
running away, one of them fell to the ground. It was then that he
a man approaching him from the middle of the yard. As he
approached DW.2, that man was holding a firearm which he pointed at
DW.2 then quickly took cover behind a vehicle which was parked
next to where he was working. He eventually managed to escape and
ran across the gravel road that passed on the
6/ north side
north side of the garage building. He sat outside the
gate of the Metro Wholesale from where he could see the gunman
leaving in the
direction of the main tarred road. I shall return to
DW.2's evidence in a moment.
Now, coming back to his evidence, PW.1 told the court
that before the deceased and his two companions arrived, PW.2,
had come to the garage asking for a brake-down to
tow his vehicle which was giving trouble. As the brake-down was out
at the time,
P.W.2 had to wait for its return.
After the gunman had left, PW.1 looked around to find
what had happened to his employees. He then noticed PW.2 lying flat
ground next to the peach tree in the garage yard. He called
out at PW.2 and asked him whether he had not sustained any injuries.
PW.2, however, got up from the ground and suddenly took to his heels
without saying a word. It was not until four (4) days later
PW.1 met PW.2 who then told him that when he heard the gun reports he
took cover by lying flat on the ground where PW.1 had
PW.1 said, on the the day of the shooting, he had about
6 employees at his garage. He tried to make inquiries from them
shooting incident but, with the exception of DW.2 and 3 who
said they too had been chased around by the gun man, none of the
appeared to have seen the shooting.
Assuming the correctness of PW.1's evidence on this
point, I must say I find it rather strange that people who were
working on the
garage yard at the time of the shooting could have
failed to notice it. No doubt the employees were deliberately
truth from PW.1.
Be that as it may, PW.1 told the court that as PW.2 rose
from the ground and ran away DW.3 drew his attention to another
was lying prostrate on the ground about 4 or 5 paces
(indicated) from where PW.2 had been lying. PW.1 went to that person
identified him as the deceased. That was confirmed by
7/ The deceased
The deceased was lying about 10 paces (indicated) from
his mazda van. Between him and the spot where PW.2 had been lying,
another E.20 and the peach tree. According to PW.1, the
deceased was clearly seriously injured for he was bleeding and
PW.1 tried to raise the deceased from the ground but
found him too heavy. He then left the deceased and rushed into his
where he tried to phone the police. The police telephone
was, however, engaged. He rushed back to where he had left the
and with the assitance of one Mike Thoahlane managed to
carry him on to his (PW.1's) panel van in which he rushed the
the casualty department of the hospital. No additional
injuries were sustained by the deceased whilst being transported to
Having taken the deceased to the casualty department,
PW.1 proceeded to the police station to make a report. As he was
make a report about the shooting indicent. One Sergeant
Mochema told him that the culprit had already been arrested and
out at the accused person who was then standing behind the
counter at the police charge officer.
PW.1 then returned with sergeant Mochema to the casualty
department of the hospital. They found the deceased still at the
department and he was clearly dead, PW.1 was present when
sergeant Mochema examined the injuries on the body of the deceased.
noticed that the deceased had sustained bleeding injuries on the
back and the chest.
In the course of the trial, the court was informed by
counsel for the crown that the medical doctor who had performed the
examination on the body of the deceased was out of the
country and, therefore, not available to testify in this case. The
counsel was, however, not opposed to the
8/ to the post-mortem ...
to the post-moterm examination report being handed from
the bar as evidence in this case since the contents thereof were not
Counsel for the defence confirmed and the post-mortem
examination report, dated 15th February, 1984, was accordingly-handed
admitted in evidence. It was marked Exhibit. B.
Briefly, the evidence disclosed by Exhibit B was to the
effect that the deceased had sustained several bullet wounds on the
consequently died of cardio-respiratory failure.
It was further admitted by both counsels that there was
no dispute as to the identity of the deceased in this case where-for
to call as witnesses the people who had identified his body
before the medical doctor at the post-mortem examination.
On the evidence, I em satisfied that at the material
time, there was a man carrying a firearm and firing shots within
yard. The deceased was then hit and injured. It was
not really disputed that the deceased died as a result of those
The only important issue for determination by the court
is whether or not the accused was the person who did the shooting
fatally injured the deceased. In this regard, the
court heard the evidence of PW.2 who confirmed PW.1's testimony that
on the day
in question, he had come to the garage to hire a
brake-down to tow his vehicle. He was told that the brake -down was
out but might
come in at any time. PW.2. then decided to sit in the
shade under the peach tree on the garage yard waiting for the arrival
It was while he sat in the shade under the tree that
PW.2 noticed a person already seated in a squatting posture next to
was surprised to see that person seated next to him because
he had neither seen or heard him arrive there and contrary to common
practice among people in this country that person uttered no word of
greeting when he came and sat next to where PW.2 was seated.
and that person glanced at each other. He could see that he was the
accused person and
9/ even noticed
even noticed that his teeth on the upper row had a gap.
Shortly, thereafter, PW.2 heard a loud explosion behind him. When he
to look at the accused to see if he too had heard what he had
heard, PW.2 noticed him swiftly passing in front of him. The accused
went to the peach tree next to which they were seated and parted the
branches with his left hand. On his right hand the accused
holding a small gun of which PW.2 could see only the black barrel.
PW.2 then clearly saw the accused firing a shot in the direction
the vehicles in the garage yard. Out of fight he threw himself down
and when another shot was fired, PW.2 was lying flat on the
PW.2 confirmed the evidence of DW.3 and PW.1 that when
the latter called him out, he got up and ran away. He went to hide
a house belonging to one Mapula from where he went straight
He subsequently went to the police station and made a
statement in which he said he could positively identify the accused.
DW.2 were later taken by two police officers to an
identification parade at the Central Prison in Maseru. It was
explained to them
that they were going to point out at the person
they had seen shooting at PW.1's garage if he were among the people
on the line up.
When they came to the Central Prison, PW.2 and DW.2 were
taken to one room from which they were called out one by one, to the
where the parade was assembled. PW.2 had no difficult in
pointing the accused as the person he had seen seated next to him and
shots within PW.1's garage premises. Although he could not
dispute that the accused was wearing a blue track suit, PW.2 denied
he had been told by the police to point at a person wearing a
blue track suit in the line up.
Returning to his evidence, DW.2 confirmed PW.2's
evidence that following the shooting incident at the garage he and
PW.2 were taken
in a police vehicle to an identification parade
at the Central Prison in Maseru. According to
10/ him, DW.2
him, DW.2 had told the police that due to fear,he had
not clearly seen the gunman and could not, therefore, identify him.
nonetheless taken to the Central Prison.
I must say I find it highly improbable that DW.2 had
told the police that he would not be able to identify the gunman and
took him to the identification parade. That would clearly
serve no purpose. In all probabilities DW.2 was being untrustful on
point. However, DW.2 went on to say, immediately on arrival at
the prison, one of the police officers who were accompanying them
told him and PW.2 that they should point at a man wearing a blue
track suit in the line up. DW.2 and PW.2 were then taken to a
room from where PW.2 was the first to be called to the
parade. When PW.2 returned into the room DW.2 himself was called to
He found ten (10) men on the line up. Only one of them
was wearing a blue track suit. In accordance with the police
he pointed at that man.
Although he did not know the person he had pointed at
the parade, DW.2 was certain that it was not the accused who is now
in the dock.
After he had pointed out that person DW.2 was taken not
to the room but to the vehicle and then back to his place of work.
As has been pointed out earlier, PW.2 categorically
denied the suggestion that before he and DW.2 went to point out at
the gun man
in the parade, the police officers had told them to point
at a person wearing a blue track suit. In this regard, PW.2 was
by PW.4, W/O Ts'otetsi, who told the court that in February,
1984, he was attached to the Traffic Section of the Police Force and
stationed in Maseru. He was not involved in the investigations of
this case. On 29th February, 1984, he was, however, requested
C.I.D. police to hold an identification parade at the Central Prison
here in Maseru. Two (2) people were to identify a person
11/ At about
At about 10 a.m. he and D/Sgt Matamane drove in a police
vehicle to the Central Prison. PW.2 and DW.2, the two people who were
identify, were also in that vehicle. Before coming to the prison
D/Sgt Matamane explained to PW.2 and DW.2 that following a crime
which had been committed at the garage on 8th February, 1984, they
were going to the Central Prison to point at a person they knew
involved in the commission of the crime. This was said in the
presence and hearing of PW.4.
After dropping them at the Central Prison, D/Sgt.
Matamane left and told PW.4 that he would return later. PW.4 then
informed one of
the prison warders that he had people who were to
identify a person. The prison officer then took PW.2 and DW.2 into
one of the
offices while PW.4 proceeded to a place where the parade
was to be assembled. That place was whithin wall-enclosures and out
view from the room into which PW.2 and DW.2 had been taken.
PW.4 then asked another prison officer to bring the
suspect and 9 other people of more or less the same hight and
complexion. It was
only then that the accused and 9 other people were
brought to PW.4 who asked them to form a line up. He explained to
what charge he was facing and that he could choose any
position in the line up. Accused did and said he was satisfied with
in which the parade was arranged. PW.2 was then called from
the room. PW.4 told him to look at the people in the line up and
the suspect if he could see him. PW.2 went and touched the
According to PW.4, after pointing at the accused, P.W.2
was taken not to the room but to the vehicle which was parked
DW.2 was called, accused who had been wearing a
greenish shirt wished to exchange clothes with another person in the
did not, however, wish to change his position in the line
up. He was allowed to exchange clothes with another person but
12/ keep the
keep the same position in the parade. When DW.2 was
called to the parade PW.4 gave him the same explanation
as he did to PW.2. After looking at the people on the parade DW.2
at a person with whom the accused had exchanged clothes. The
parade was then dismissed,, It may be observed that although PW.4
after he had pointed out the accused, PW.2 was not take back to
the room where D.W.2 was waiting, DW.2 and PW.2 say he was. They
not, however, say when he returned into the room. PW.2 told DW.2 to
point at a person wearing a blue track suit. In that event
irregularity cannot, in my view, be fatal to the identification
The evidence of PW.3, Molahli Molahli, was that on 8th
February, 1984 he was working for Radio. Lesotho. On that day he went
at one of the shops next to Ma-Africa Motor Garage. He
used a Government car to go to the shop, When he got out of the shop
before he could get into his car he noticed two men running
from the direction of the garage towards the centre of the town.
After the two men had passed, he again noticed another person running
towards the town from the same direction i.e. from the Ma-Africa
Motor Garage. PW.3 entered into his car and started the engine. The
three people who were running away were still within his view.
Before he could engage the forward gears, PW.3 noticed a
police officer, Sergeant Mochema, also coming running from the
of the garage. The police officer immediately opened the
door, got into the car and told PW.3 "Let us go, we are chasing
person." He was referring to the person whom PW.3 had seen
running from the direction of the garage towards the centre of the
town after the other two had passed. The first two persons were by
then out of view but the third one was still within PW.3's sight.
PW.3 then drove the car and followed that person
13/ who was
who was running along the T.Y. tarred road. When he came
to the cover of Oxford furniture shop, that person turned to the
the bus stop. PW.3 also turned his car to the right
towards the bus stop. That person who was still within his view then
the road and turned towards Co-op Lesotho offices. PW.3 also
turned his car and drove in the direction of that person. When he was
next to him, PW.3 stopped the car and heard Sergeant Mochema ordering
that person to stop. The person complied and placed his hands
waist. PW.3 clearly saw him as the accused. Sergeant Mochema was
already-holding a firearm which he pointed at the accused.
ordered him to hand over his gun and the accused did hand over a
revolver which Sergeant Mochema took possession of. PW.3 then
of the car and opened the rear door. The accused got into the car
and PW.3 immediately drove straight to the police charge
was present at the charge office when Sergeant Mochema handed the
accused and his revolver to the police at the Central
Accused's revolver was also opened in his presence when PW.3 noticed
4 empty shells being taken out,
PW.5, Major Manamolela, testified that on 8th February,
1984, she was at her office at the Police Headquarters in Maseru when
received a report following which she rushed to the Central
Police Charge office in Maseru. She arrived at the charge office
with PW.3, who was with the accused and Sergeant
Mochema. Sergeant Mochema who is now late then handed to her a .38
with the explanation that he had taken the revolver
from the accused. When she opened it, PW.5 found four (4) empty
shells and one
life bullet in the revolver. She took possession of
the revolver, the four (4) empty shells and the life bullet. She
sent the revolver and the (4) empty shells to a
ballistic expert in Pretoria in the Republic of South Africa for
14/ the revolver
the revolver and the four (4) empty shells were returned
together with ballistic expert's report. The revolver, the four (4)
shells, the life bullet and the expert's report had since been
in the police custody. She formally handed them in as exhibits in
her evidence and were respectively marked Exhibits 1,2,3 and A.
According to Exhibit A which was duly sworn to by the
Ballistic Expert Detective Sergeant Gary Charles Arntsen of the South
Police Force in the Republic of South Africa, both Exh. 1 and
2 were subjected to expert examination. The results were that Exh.1
was in working conditions and Exh. 2 had been fired from Exh. 1.
In his evidence, the accused told the court that his
home was at Clemont in Durban (Natal) in the Republic of South
Africa. In December,
1983 he and his wife left the Republic of South
Africa for a visit in Lesotho. They entered Lesotho through Ficksburg
After crossing the boarder they went to accused's
maternal grandmother in the village of Ha Nkuke at St. Monica's in
of Leribe. After greeting the grandmother,the wife left
on the same day for her maiden home at Chebiri village in the
district while the accused himself remained at St.
Monica's. However, on 8th February, 1984, the accused left St.
Monica's to go
and see his wife in Mohale's Hoek. He was travelling
by taxis. On the way he got off the taxi and went to see a friend of
Jersy Ramakatane at the village of Ha Mabote on the out
skirts of Maseru. He was running shot of money and wanted his friend
him with some cash for paying the taxi fares. He was given
R50. Jersy Ramakatane then took him in his car and dropped him at
Turky where he (accused) wanted to buy chicken and some other
food stuff for his wife in Mohale's hoek. Ken Turky shop is opposite
a certain school of which he did not know the name.
It may be mentioned that in Maseru there is only one Ken
Turky shop which is next to Ma-Africa motor
garage opposite the Lesotho High School. The court,
therefore, takes judicial notice that the school which the accused is
about is the Lesotho High School.
Having bought the chicken and some other food stuff at
Ken Turky, the accused then walked to the bus stop in Maseru. He
to a garage with many-vehicles. He did not know PW.2.
From Ken Turky shop, he walked along side the main tarred road
T.Y. When he came to the robots, the accused turned
right and went to the bus stop, where a policeman arrested him saying
him of having killed a person. He believed the
policeman picked on him because he was not wearing a blanket. He
walked with the
policeman to the charge office. PW.3 was, therefore,
telling a lie when he said he drove him in a car to the police
accused said he did not have a firearm with him and did
not even know what it was. PW.3 was again deceiving the court when he
that he (accused) had handed a revolver to the police
According to the accused, he did know PW.5 and had seen
her for the first time when she and another police officer took him
in a car
to the garage with many vehicles next to Ken Turky shop.
Accused told the court that he was kept at the police
charge office for about 2 days during which he was assaulted by the
in an attempt to force a confession from him. He was
then taken to court, hospital and finally the prison. He confirmed
at the prison, the identification parade was held when
PW.2 pointed at him. After he had changed his clothes with another
in the parade, DW.2 also came but pointed at the person with
whom he had changed clothes, DW.2 and PW.2 could have been told by
police how he was dressed and that he had two front teeth missing
on the upper row of his teeth.
I do not see how, even before they had met and seen him,
the police could have known the way in which the
16/ accused would
accused would be dressed at the parade. I have no
hesitation, therefore, in rejecting the suggestion that
the police had told PW.2 and DW.2 how the accused was dressed.
The accused conceded that prior to the shooting incident
he had had no dealing with the Lesotho Police. He did not know PW.2,
and PW.5. He had never clased in any way with those witnesses
and no grievances existed between him and the witnesses.
That being so, I find it difficult to imagine any good
reasons why the witnesses should fabricate against the accused in
They cannot, even by any stretch of imagination, be said
to have an interest or bias adverse to the accused.
The accused suggested that the police officer who
arrested him at the bus stop picked upon him because, as a person
from outside Lesotho,
he did not put on a blanket. Although it is
often said the Basotho people traditionally put on blankets, anyone
who has been at the
bus stop in Maseru will know that that place is
milling with hundreds and hundreds of people who are not wearing
blankets. The accused's
suggestion cannot, therefore, hold water.
In my view, the real important question is whether or
not the witnesses who say they identified the accused had proper
to do so. PW.2's evidence is that at about 12 noon on
the day in question, he noticed the accused already seated in a
posture next to where he was seated in the shade under a
peach tree. His attention was attracted to the accused by the fact
he had not seen or heard him coming. He only noticed him
already squatting next to him. Contrary to common practice among
local people, the accused did not even greet him when he came and
squatted next to him. He, therefore, looked at the accused and
he also looked at him, PW.2 noticed accused's rather conspicuous gap
on the upper row of his teeth. He was then startled by
sound and when he tried to look at the accused to find out if he too
had heard the explosion, he noticed the accused
quickly passing in
front of him,
17/ parting the
parting the branches of the peach tree and firing a shot
with a gun he was holding in his hand.
It seems to me under the circumstances, PW.2 did have a
good opportunity to observe the accused and was testifying to the
he said he positively identified him.
PW.3's attention was also attracted by the sight of two
people followed by a third running away. Then a policeman hurriedly
his car and told him to chase after the third person who was
still within his view. He drove the car and followed that person who
never got out of his view until he stopped the car next to him. That
person was immediately disarmed of a revolver which he had
possession and put into the car. PW.3 then drove to the police charge
office where the person whom he clearly identified as
the accused was
Although the accused said he walked to the police
station and was not taken there in PW.3's car, the evidence of PW.3
was in a way
corroborated by that of PW.5 who told the court that she
arrived at the charge office simultaneously with PW.3 who was with
and the late Sgt. Mochema. I find no good reasons to
doubt PW.3's evidence supported by that of PW.5 on this point and I
to accept it as the truth.
Considering the evidence as a whole, I am satisfied that
the accused is the person who was carrying Exh. 1 from which shots
on the premises of PW.1's garage on 8th February, 1984.
There is no evidence that besides the accused any other person
gun from which shots were fired. The question whether or
not the accused was the person who did the shooting and, therefore,
injured the deceased must in my judgment be answered in the
18/ There is
There is no doubt in my mind that by shooting the
deceased several times with a leathal weapon such as Exh. 1, the
accused had the
requisite subjective intention to kill. I
accordingly convict him of murder as charged.
My assessor entirely agrees with this decision,
29th October, 1984.
For Crown : Mr. Kalamanathan, For Defence : Mr.
The court has rejected as false the Defence's story that
the accused did not kill the deceased and accepted as the truth the
version that he did. Consequently the accused was convicted of
the murder of the deceased.
Having convicted him of murder, the question that now
arises is whether or not there are any factors, connected with the
of the crime, tending to reduce the moral culpability of
the accused. In this regard the court has had the benefit of able
addresses from counsel on either side.
It is trite law that the onus is on the accused to
establish, on a preponderance of probabilities, the existence of
In the present case the accused himself
did not give evidence on extenuating circumstances. However, the
defence called two witnesses,
'Manchakha Tsosane and Jersy Ramakatane
to testify in that regard. The gist of their evidence was that to
the best of their knowledge,
the accused and the deceased did not
know each other.
According to her evidence, 'Manchakha Tsosane lived in
Butha-Buthe and was the wife of a certain Thabo Eliot Motloung. After
on 31st December, 1983, the deceased, Oscar Lebohang
Leluma, came to her house desperately looking for her husband,
was here in Maseru at the time. When he could not find
Motloung, the deceased left. 'Manchakha Tsosane, to whom the deceased
well known, believed that the latter was leaving for Maseru.
She, therefore, told the deceased to give her regards to her husband,
Motloung. The deceased, however, told her that she would never see
her husband again. On Monday, 2nd January, 1984, she received
news concerning the death of her husband. The matter was reported to
the police but as far as she was aware, the murderer has
traced up to now. She was positive that she did not know the accused
person who was a complete stranger to her.
20/ In his
In his evidence, Jersy Ramakatane told the court that he
had been sitting in the court room throughout the proceedings in this
His evidence must, therefore, be approached with caution.
He said he was a businessman in Maseru. He knew the
accused and the late Motloung who was his partner in business. The
was renting a room at his (Ramakatane's) place at Ha
Mabote on the outskirts of Maseru where he stayed while in Maseru.
he knew him, the deceased was not a friend of his. The
deceased was,however, a friend of the late Motloung.
Following certain reports, the details of which were
clearly hearsay and, therefore, inadmissible evidence, Ramakatane
went to the
mortuary where he found the dead body of Motloung. He
noticed about 4 bullet wounds on the body.
'Manchakha Tsosane also reported to him what had
happened at her house in Butha-Buthe on the night of 31st December,
1983. He informed
the police about what 'Manchakha Tsosane and other
people had reported to him.
Notwithstanding the information he gave to the police,
the latter have, to the best of his knowledge, never detained the
for interrogation in connection with the death of Motloung.
However, because of what 'Manchakha Tsosane and other people had told
him, Ramakatane believed that Motloung had been killed by the
deceased, Oscar Lebohang Leluma. That was also the general belief
among the acquaintences of the late Motloung.
Although it was not clear from the evidence of
Ramakatane whether it was before or after the burial, the accused who
was also a friend
of Motloung did come to him before the 8th
February, 1984 when he and other people "obviously" said
the death of Motloung.
I am not so sure that I understand what the witness
means by the term "obviously". Whatever that means the
gave evidence in his defence never told the court that
following the death of Motloung he had said anything of the sort to
21/ In his able .....
In his able address the defence counsel referred the
court to a number of autorities, both in the Republic of South Africa
Lesotho, all of which indicated that where an accused person
had killed a deceased following his belief that the latter was
harm to him or a close relative of his, extenuating
circumstances were found to exist. (Rex v. Fundakubi and Others
810, Mokola Ramone v. Rex 1967-70 LLR. 31, S.v Ndlovu
1970 (1) S.A. 430, Rex v. Rai Manyangaza and Other 1971-73 LLR. 171
It is to be observed, however, that in the present case,
there is no evidence that the accused is a relative of Motloung nor
any evidence that he had a belief that the deceased was
causing harm to him or a close relative of his. All that the evidence
Ramakatane, if it were to be believed, points to, is that the
accused was a friend of Motloung. The decisions to which this court
has been referred are, therefore, no authority that even where the
belief is that the deceased had killed a friend the court should
that extenuating circumstances exist.
It was argued, however, that the underlying philosophy
in all these decisions was not so much that the deceased had harmed
or a relative of his but that he had harmed a beloved one
and the principle should, therefore, be extended to cases where a
that the deceased had harmed a friend existed.
Assuming for the sake of argument that it is so, the
difficulty in this case is, however, that the accused has taken the
he did not kill the deceased and the court found otherwise.
The accused has not gone into the witness box after conviction to
us that Motloung was his friend or beloved one and what his
state of mind was after he had learned of his death.
I do not conceive it to be the duty of this court to
speculate as to what the accused's state of mind was at the
22/ time of the ....
time of the killing. The one person who could have
enlightened the court and whose vital interest it was to do so was
who has, however, chosen to conceal the truth. That
being so, the argument does not,in my view, advance the case for the
It was further argued that the court should take into
consideration the probability that the accused was not alone in the
of this offence. He was with some other persons and he
played a minor role.
This argument was based on the evidence of PW.2 who had
said while he was sitting in the shade of the peach tree on the
he heard a gun report behind him. It was contended
that someone other than the accused himself must have fired that shot
fatally injured the deceased. I am not persuaded. The
evidence of PW.2 was that when he heard that first shot he tried to
at the accused who had been squatting next to him but at that
time noticed him swiftly passing in front of him and parting the
of the peach tree from where he fired another shot with the
gun he was holding in his hand. It seems to me, therefore, that at
time PW.2 heard the first shot behind him, the accused was no
longer squatting next to him. He was already on his feet and that
why the moment PW.2 turned to him, the accused was already
passing in front of him.
The second ground on which the argument was based is
that according to the post-mortem examination report, the deceased
had 5 bullet
wounds. The firearm alleged to have been found on the
accused had the capacity to load five rounds of ammunition. When it
only four (4) empty shells and a life bullet were found
thus suggesting that only four shots had been fired from the gun. If
accused fired only four shots, he could not have inflicted five
(5) bullet wounds on the deceased. Another person must, therefore,
have fired the fifth shot which may well have caused the fatal injury
on the deceased. The argument that the deceased had sustained
(5) bullet wounds was
based on the fact that according to the post-mortem
examination report, there seems to have been 5 entry and 5 exit
wounds on the
body of the deceased.
It may be mentioned that at the time the post mortem
examination report was admitted in evidence and handed in as an
exhibit, I pointed
out the difficulty involved in handing in from the
bar documents such as this post-mortem examination report which are,
than not, written not only in scientific language but also
in an illegible handwriting and asked that it be explained to the
None of us could explain with any certainty what is meant for
instance, by "31CS" and "81CS" or "T12"
and "L2". Only the doctor who performed the post mortem
examination could explain this and how the 5 entry and exit wounds
were made on the body of the deceased. Particularly so because
according to Ramakatane, there were only four (4) bullet wounds on
Be that as it may, there was no doubt in my mind that
considering the totality of the evidence particularly that of DW.3
saw the gun man firing shots in the direction of the
deceased and the two people with whom he was going only one person
shots. Wherefor I found as a fact that no other person
beside the accused had fired the shots that fatally injured the
If there were people with whom the accused was
committing this offence, it may be argued that they were the two
people with whom the
deceased was going. It is, however, unlikely
that either of those people actually shot at the deceased for DW.3
told the court that
as the shots were fired, he positively saw those
two people running away in the same direction with the deceased who
fell to the ground. In my view the deceased could
not have run away together with the people who were shooting at him.
If the argument
is intended to suggest that in committing this
offence the accused acted in concert with the two men with whom the
deceased was going
then on the evidence it would appear that the role
played by the two men was merely
24/ to decoy
to decoy the deceased to the garage where the accused
would do the actual shooting. I am unable, therefore, to accept the
that the role played by the accused in the commission of
this crime was a minor one.
In the light of all that has been said, it is clear that
I take the view that no extenuating circumstances exist in this case
the proper verdict is, therefore, that of guilty of murder with
no extenuating circumstances.
My assessor entirely agrees with this finding.
B.K. MOLAI. 20th November, 1984.
For Crown : Mr. Kalamanathan For Defence : Mr. K.
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